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From the ethical standards quoted and discussed in part I, supra, it is evident that concurrent representation of multiple defendants in the same case presents a far greater danger of conflict of interest than prior representation of the victim of a crime in an entirely unrelated matter. As the commentary to the Restatement notes, "joint representation in criminal cases often has a material and adverse effect on the representation of each defendant . . . ." 2 American Law Institute, Restatement (Third) of the Law Governing Lawyers, §129, Comment c, p. 351 (2000) (emphasis added). In contrast, a prominent capital defense advocate notes that only rarely is it even possible to impugn the character of the victim. See Coyne, Inflicting Payne on Oklahoma: The Use of Victim Impact Evidence During the Sentencing Phase of Capital Cases, 45 Okla. L. Rev. 589, 614 (1992). Even where it is possible, such an attack will typically be strategically unwise due to its potential to alienate the jury. See Wallace, The Ethical Considerations of Defense Strategies When Confronted With Victim-Impact Statement--Give Us Dirty Laundry?!, 13 Thomas M. Cooley L. Rev. 991, 1012 (1996).
Sequential representation of the victim and perpetrator in unrelated matters, therefore, would only rarely have a material and adverse effect on representation. Where the lawyers have no relevant, confidential, nonpublic information from the former client, as in this case, there is no conflict at all. Where the lawyers do have such information, the only effect is that they cannot use it, see Restatement, supra, §132, Comment f, Illustration 6, at 383, which is the same as having a lawyer who does not know the information.
Certainly it is objectively reasonable to believe that there is no greater burden on the trial court and no lesser showing required of the defendant in the sequential representation situation than there is in the concurrent representation situation. A weak argument could be made for such a differential based on the fact that common defense sometimes has a benefit, see Burger v. Kemp, 483 U. S. 776, 783-784 (1987), but no such subclassification of types of conflict is even intimated by, much less "dictated" by, this Court's precedents. Applying the concurrent representation precedents at face value to the sequential representation situation cannot be considered objectively unreasonable.
Cuyler v. Sullivan, 446 U. S. 335 (1980) held in part IV A, "Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." Id., at 347. Concurrent representation alone is not enough, and sequential representation is even less. Specifically, if the possibility inherent in every criminal case of inconsistent defenses of co-defendants is not enough to trigger the duty of inquiry, then the much lesser possibility of putting the dead victim on trial in a capital case cannot be.Sullivan then held in part IV B that "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id., at 348. The condition stated for this requirement is lack of objection. The only reference to trial court inquiry in part IV B comes in a footnote accompanying this statement. The Court cited seven Court of Appeals cases as consistent with its holding, followed by a "cf." cite to a case holding "burden of proof shifts when trial court fails to inquire into possibility of conflict." The "cf." signal indicates that this case is at variance with the Court's holding. Sullivan does not hold that finding a trial court duty to inquire obviates the adverse effect requirement. Its rule is stated in broader terms, and subsequent cases confirm that breadth.
Wood v. Georgia, 450 U. S. 261 (1981) is the mainstay of the argument that the law has changed since Sullivan, or, alternatively, thatSullivan contains an unstated exception to its plainly stated rule. See Brief for Petitioner 29. Wood is an unlikely candidate to carry such a burden.
In Wood, the defendants were low-level employees of a pornographic theater and affiliated bookstore. See 450 U. S., at 263-264, and n. 3. They were fined thousands of dollars. Id., at 263. The employer provided the defense counsel, and the employees expected the employer to pay the fines, but it did not. Id., at 264, 266-267. As they were unable to pay themselves, their probation was revoked, and they were ordered to jail. Id., at 264, and n. 2. The Court held that in this case, unlike Sullivan, the potential of conflict was strong enough to create a duty in the trial court to inquire. There was a powerful and apparent danger that the employer's interest in a test case directly collided with the employees' interest in leniency. Id., at 270. The Court vacated and remanded for an actual conflict inquiry.Id., at 272-274. Actual conflict and adverse effect are not separately discussed. The opinion implies that on the facts of the case the two inquiries are intertwined. See id., at 271-272. (3)
Justice White objected to the manner in which the Court reached the conflict issue, believing that the Court lacked jurisdiction over it.
"The Court apparently believes that under Cuyler v. Sullivan, 446 U. S. 335 (1980), the possibility of a conflict of interest of constitutional dimensions should have prompted further inquiry by the trial judge. But Cuyler v. Sullivan did not purport to give this Court jurisdiction over a claim otherwise beyond its reach. Cuyler held only that if a trial court 'reasonably should know that a particular conflict exists,' id., at 347, then a failure to initiate an inquiry may constitute a Sixth Amendment violation. If this is the case here, then petitioners remain free to seek collateral relief in the lower courts." Id., at 280 (dissenting opinion).
In response to this objection, the Court dropped this footnote:
"18. Justice White's dissent states that we have gone beyond the recent decision in Cuyler v. Sullivan, 446 U. S. 335 (1980). Yet nothing in that case rules out the raising of a conflict-of-interest problem that is apparent in the record. Moreover, Sullivanmandates a reversal when the trial court has failed to make an inquiry even though it 'knows or reasonably should know that a particular conflict exists.' Id., at 347." Id., at 272, n. 18 (emphasis in original).
In context, this footnote says nothing at all about the requirement of an adverse effect for an overturning of a criminal judgment. That prerequisite was not the basis of the dissent's objection, and hence there was no need to discuss it. On the facts of Wood, the adverse effect was obvious once the conflict was determined to be an actual one. There was no doubt that the employees were given fines far in excess of their ability to pay, and if the attorney had a conflict inhibiting his freedom to argue for leniency there was nothing more to establish.
If the Wood footnote were interpreted to say that Cuyler v. Sullivan mandates overturning a criminal judgment and ordering a new trial for failure to make an inquiry with nothing more, that statement by Wood would be manifestly wrong. Sullivan said nothing of the sort.Sullivan held that there was no duty to inquire in that case. The inquiry discussion properly ends with that holding. See 446 U. S., at 348.
Some indication of whether a case changes the law may be gleaned from the manner in which the Court decides it. In Lambrixv.Singletary, 520 U. S. 518 (1997), there was an argument that Espinosa v. Florida, 505 U. S. 1079 (1992) (per curiam) could not be a new rule because it was decided summarily. See Lambrix, at 538-539. The Court did not deny that such an inference might generally have some weight, but it was not applicable to Espinosa, because the identical issue had been fully briefed and argued in another Florida case. (4) See ibid. Wood is the mirror image of Espinosa. Although Wood was a fully briefed and argued case, it was briefed and argued on an entirely different point. On the point actually decided, the Court was "without the benefit of briefing and argument." 450 U. S., at 272. As precedent, Wood should be regarded with the same skepticism as a summary decision. See Hohn v. United States, 524 U. S. 236, 251 (1998) (noting reduced precedential force when "the opinion was rendered without full briefing or argument").
New rules are occasionally made in summary decisions. Cage v. Louisiana, 498 U. S. 39 (1990) (per curiam), disapproved in part inEstelle v. McGuire, 502 U. S. 62, 72, n. 4 (1991), is the most prominent example. See Tyler v. Cain, 533 U. S. __, 150 L. Ed. 2d 632, 642, 121 S. Ct. 2478, 2482 (2001). It would be fair to say that new rules should not be made in summary decisions, although they sometimes are. If a summary decision appears to plow new ground, cf. Teague, 489 U. S., at 301, we must look to later cases to see whether anything grew in that furrow.
Strickland v. Washington, 466 U. S. 668 (1984) is the Court's most extensive and comprehensive discussion of when the shortcomings of counsel require reversal of a criminal judgment. See id., at 671. Strickland's analysis of the conflict cases bears directly on the question in this case and is worth quoting in full and in its surrounding context.
"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U. S. 361, 364-365 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.
"In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. See United States v.Cronic,ante, at 659, and n. 25. Prejudice in these circumstances is so likely that case by case inquiry into prejudice is not worth the cost. Ante, at 658. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.
"One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, 446 U. S., at 345-350, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see e.g., Fed. Rule Crim. Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interestadversely affected his lawyer's performance.' Cuyler v. Sullivan, supra, at 350 (footnote omitted).
"Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., at 691-693 (emphasis added).
Strickland thus establishes a carefully constructed three-tier system based on the degree of the state's responsibility and the difficulty of showing adverse effect or prejudice. The first tier, requiring no showing at all, is reserved for direct state interference or violation of the clear and simple duty to appoint counsel. Conflicts generally are included in the second tier. There is no subdivision into cases where the trial court did or did not have a duty to inquire further. The ability to inquire is expressly noted as the reason for reducing the normal "prejudice" showing down to the lower hurdle of adverse effect. The difficulties of proof are also cited as a reason for reducing, not eliminating, the defendant's burden of proof. Although this passage is arguably dictum, as Strickland is not a conflict case, it illustrates the Court's understanding of the different types of Sixth Amendment claims and the showing needed for each. This understanding was recently reiterated in Smith v. Robbins, 528 U. S. 259, 287 (2000).
Burger v. Kemp, 483 U. S. 776 (1987) applied the adverse effect requirement to a case where the potential for conflict was comparable to that in Wood and far stronger than the present case. Burger was a two-defendant capital murder case in which "each of the two defendants sought to emphasize the culpability of the other in order to avoid the death penalty." Id., at 781. Two law partners were appointed to represent the two defendants in separate trials, ibid., and the Court decided the case on the assumption that "two law partners are considered as one attorney" for conflict purposes. Id., at 783; see also American Bar Association, Model Rules of Professional Conduct, Rule 1.10(a), p. 36 (2001 ed.).
The Burger Court does not ask or answer the question of whether the trial court had a duty to inquire sua sponte into the potential conflict. Instead, the Court rejects a blanket presumption of prejudice and requires a showing of both actual conflict and adverse effect.Burger, supra, at 783 (citing Cuyler v. Sullivan and Strickland). On this point, the Court was unanimous among the eight Justices who expressed an opinion. (5) The dissent concluded that the trial court did err in failing to inquire, id., at 810 (Blackmun, J., dissenting), but nonetheless agrees that defendant did have to show an adverse effect. The dissent disagrees only with the application of the standard to the facts of the case, not with the statement of the standard. See id., at 799, 809-810.
Burger makes clear that six years after Wood, the two-part Cuyler v. Sullivan standard applied to all claimed conflicts in the absence of an objection at trial, without regard to whether the trial court had a duty to inquire sua sponte.
The First Circuit in Brien v. United States, 695 F. 2d 10, 14-15, 20 (1982) applied Cuyler v. Sullivan and required an adverse effect, rejecting a broader interpretation of Wood. See id., at 15, n. 10. Amicus Charles W. Wolfram states that Brien is a "common approach" to defining the burden. C. Wolfram, Modern Legal Ethics §8.2, p. 415 (1986). Although a single opinion does not necessarily render an interpretation of this Court's precedents objectively reasonable, see Williams v. Taylor, 529 U. S. 362, 410 (2000), a widespread interpretation does, and it is error to resolve conflict with such an interpretation in the habeas petitioner's favor. See Caspari v. Bohlen, 510 U. S. 383, 395 (1994).
In People v. Bonin, 47 Cal. 3d 808, 837-838, 765 P. 2d 460, 476 (1989) Justice Mosk, writing for the California Supreme Court, interpreted Wood and Strickland to require an adverse effect showing. Justice Marshall, dissenting from denial of certiorari, wrote, "This Court has never squarely resolved the question whether proof of adverse effect is required . . . ." Bonin v. California, 494 U. S. 1039, 1043 (1990). He found Sullivan unclear and Wood and Strickland "at odds." Ibid. The Ninth Circuit subsequently agreed that an adverse effect was required. Bonin v. Calderon, 59 F. 3d 815, 825 (1995), cert. denied, 516 U. S.1051 (1996).
If there was doubt in 1990, it appears to have disappeared by 1994. In Burden v. Zant, 510 U. S. 132 (1994) (per curiam), the public defender had concurrently represented both Burden and the principal witness against him and obtained immunity for the witness. SeeBurden v. Zant, 498 U. S. 433, 434-435 (1991) (per curiam). This Court twice summarily reversed the Eleventh Circuit for failure to properly credit the state court factual finding on immunity. The second time, the remand order directed the lower courts "to determine whether Mr. Kondritzer's representations created 'an actual conflict of interest adversely affect[ing] [his] performance.' Cuylerv.Sullivan, 446 U. S. 335, 350 (1980)." 510 U. S., at 134 (emphasis added, alterations in Burden).
If we are to infer controlling standards from remand orders in unargued cases, the inference from Burden is stronger than the inference from Wood. First, Burden is the later decision. Second, Burden expressly states the requirement, while Wood merely omits mention of an element which was unlikely to be separately contested.
A survey of the legal landscape shows that the interpretation of precedents most favorable to petitioner's position is the one expressed by Justice Marshall: that Wood is "at odds" with later cases and the issue has not been "squarely resolved." The alternate interpretation is that Wood is not as broad as its footnote might be read, is limited by the facts of the case, has minimal precedential value as a decision on an unbriefed, unargued point, and is flatly contradicted by later authority. Any contention that petitioner's claimed rule is dictated by precedent within the meaning of the Teague line of cases is patently without merit.
When Justice Harlan first proposed the rule that is now Teague, he acknowledged that it would sometimes be difficult to determine whether a rule is really "new." See Desist v. United States, 394 U. S. 244, 263 (1969) (dissenting opinion). Occasionally it is, but often it is quite straightforward. When the Court overrules a precedent on point, the rule of the overruling case is "new" beyond question. SeeButler v. McKellar, 494 U. S. 407, 412 (1990). Amicus submits that a second class of categorically "new" rules can be defined. That is, when the holding, not dictum, of a case states a rule of law, a proposal to make an exception to that rule or give it a lesser scope than it has on its face is a proposal for a new rule.
A somewhat analogous principle can be found in the rule regarding application of this Court's precedents by lower courts. "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). Similarly, if a rule stated by this Court is to be narrowed so as to have a smaller scope than originally stated, it is for this Court alone to make that limitation.
O'Dell v. Netherland, 521 U. S. 151 (1997) employed a principle similar to the one we suggest. At the time O'Dell's conviction became final, California v. Ramos, 463 U. S. 992 (1983) and Caldwell v. Mississippi, 472 U. S. 320 (1985) appeared to have established a general rule that giving the jury accurate information about postsentencing proceedings, including appeal, clemency, and parole, was a policy choice the states could make either way. See 521 U. S., at 163-164. Then, in Simmons v. South Carolina, 512 U. S. 154 (1994), "the Court carved out an exception to the general rule described in Ramos by, for the first time ever, requiring that a defendant be allowed to inform the jury of postsentencing legal eventualities." O'Dell, supra, at 166. Prior to Simmons itself, failure to predict that such an exception would be carved out of the general rule could not be deemed unreasonable, and hence Simmons was a "new rule." Ibid.
The Court of Appeals panel, in effect, read Wood as carving out an exception to Sullivan's adverse effect requirement merely by omitting any discussion of the requirement. Mickens v. Taylor, 227 F. 3d 203, 210-211 (CA4 2000). That inference would be shaky enough if the line of cases ended at Wood, but it becomes particularly suspect in light of Burger's invocation of the requirement in a case where the dissent asserted that the duty to inquire existed and had been breached, as well as Burden's explicit requirement of adverse effect in its remand order.
The contention that Sullivan, Strickland, Burger, and Burden do not mean what they so clearly say brings to mind Justice Jackson's classic lament, now nearly half a century old yet as timely as the day it was written. "Whatever has been intended, this Court has also generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles." Brown v. Allen, 344 U. S. 443, 535 (1953) (opinion concurring in the judgment).
Teague and the corresponding rule of §2254(d) share the common goal of enhancing finality by limiting the drastic remedy of collateral attack on final judgments to those claims that are based on clear violations of existing rules. See Butler v. McKellar, 494 U. S. 407, 413-414 (1990); Williams v. Taylor, 529 U. S. 362, 404 (2000) (intent of Congress to limit); Williams, at 410-411. To achieve this goal, courts and counsel must be able to rely on the general rules as stated by this Court unless and until this Court expressly carves out an exception. Sullivan, Strickland, Burger, and Burden on their face state a general rule applicable to all claims of attorney conflict to which no objection was made at trial. If an exception is to be made, it must be made on direct review in a case postdating BurgerandBurden. Until then, any proposal for such a rule is per se "new."
The decision of the Court of Appeals for the Fourth Circuit should be affirmed.
September, 2001
Respectfully submitted,
Kent S. Scheidegger
Attorney for Amicus Curiae
Criminal Justice Legal Foundation
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3. The existence of an adverse effect can be a factor in determining whether there is a conflict, see, e.g., Model Rules, Rule 1.7(b)(1), at
25, and hence the two inquires may be intertwined.
4. Teague itself is a variation on the same theme. The adoption of Justice Harlan's view of retroactivity was fully briefed, indeed
proposed, by counsel for Teague, albeit in relation to a different issue. See Teague v. Lane, 489 U. S. 288, 300 (1989); Brief for
Petitioner in Teague v. Lane, No. 87-5259, pp. 21-32.
5. Justice Powell did not address the conflict question. See id., at 817-818 (dissenting opinion).